Friday, April 13, 2012

David Friedman and Murray Rothbard on Torture

In a recent post, David Friedman comes pretty close to writing up a Murray Rothbard view on torture. (Though he misses some of the nuances that Rothbard discussed about torture) Friedman appears to view quite favorably the Visigothic Forum Judicum, with regard to torture. Friedman writes:

I recently came across an ingenious, if imperfect, solution to the problem in what is apparently the oldest surviving Germanic law code—the VisigothicForum Judicum. Alaric accuses Beremud of murder. There is not enough evidence to convict Beremud, so he is tortured to make him confess. Under the code:

“The judge shall take the precaution to compel the accuser to specifically describe the alleged offence, in writing; and after he has done so, and presented it privately to the judge, the torture shall proceed; and if the confession of him who is subjected to the torture should correspond with the terms of the accusation, his guilt shall be considered to be established. But if the accusation should allege one thing, and the confession of the person tortured the opposite, the accuser must undergo the penalty hereinbefore provided; because persons often accuse themselves of crime while being tortured.

If Beremud is innocent, he won't know the details of the offense—where and when the victim was killed, with what weapon, what wounds were inflicted. However much he wants to stop the pain, he can't confess what he does not know. This assumes, of course, that an innocent defendant will not know the details of the crime. The code dealt with that problem:

But if the accuser, before he has secretly given the written accusation to the judge as aforesaid, should, either in his own proper person, or by anyone else, inform the party of what he is accused, then it shall not be lawful for the judge to subject the latter to torture, because the alleged offence has become publicly known.”

[P]olice may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault. In short, in all cases, police must be treated in precisely the same way as anyone else; in a libertarian world, every man has equal liberty, equal rights under the libertarian law. There can be no special immunities, special licenses to commit crime. That means that police, i n a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better t u r n out to deserve it, otherwise they are the criminals.

Note Rothbard's important take on how police should be treated if they torture a suspect. Note further, the necessity of the finding of facts as the result of torture, for Rothbard, as opposed to gaining a confession. The Visigothic Forum Judicum rules of torture seem to have a game theory element to them, which puts pressure for truthfulness only on the accuser, where Rothbard advances the concept of the rules of torture so that they also apply to police and other potential torturers.

Sometimes you don't have to read up on old surviving Germanic law code for the best insightful perspective, sometimes you just have to read what is right in front of you.

2 comments:

Rothbard's comments on torture provide an indicator on a classical liberal and libertarian response to the growing surveillance state in the modern 'war on terror' era. Although Rothbard's radical abolitionist approach makes sense, Rothbard was not opposed to interim or compromise steps that were stepping stones or 'halfway houses' short of his end goal.

When state agencies seek to invade citizens' privacy, in the event that no criminal or military charges are ultimately laid against the citizen whose privacy has been invaded, then the agency should provide a report detailing the time, date and place of invasions made in the name of the state. It may be that a 5-10 year time lag be applied so as to give the agencies some 'benefit of doubt' and the opportunity to reapply surveillance should a premature case be made.

Let's say a perpetrator is 'coerced' into revealing the location of a gun buried in the back yard. If forensics later proves the gun was used in the murderous crime in question, and is linked to the suspect, then the evidence is admissible.